Donald D. Lewis, etc. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia
DONALD D. LEWIS, S/K/A
DONALD DANE LEWIS, III
MEMORANDUM OPINION * BY
v. Record No. 2504-95-2 JUDGE SAM W. COLEMAN III
DECEMBER 3, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
James F. D'Alton, Jr., Judge
M. Duncan Minton, Jr. (White, Hamilton, Wyche
& Shell, on briefs), for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Donald D. Lewis was convicted in a bench trial of
maliciously setting a fire in the Dinwiddie County jail in
violation of Code § 18.2-77. On appeal the defendant challenges
the sufficiency of the evidence to support the conviction.
Specifically, he contends that the Commonwealth failed to prove
(1) that the fire was not accidental, and (2) that he had the
requisite intent to burn the jail. We find the evidence
sufficient and affirm the defendant's conviction.
In order to convict an accused, the Commonwealth must prove
beyond a reasonable doubt "each and every constituent element" of
the crime. Hamm v. Commonwealth, 16 Va. App. 150, 153, 428
S.E.2d 517, 520 (1993). To establish arson under Code § 18.2-77,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the Commonwealth must prove that "the fire was of incendiary
origin and that the accused was a guilty agent in the burning."
Augustine v. Commonwealth, 226 Va. 120, 123, 306 S.E.2d 886, 888
(1983). An incendiary fire is one that involves a deliberate or
intentional burning of property. See Callahan v. Commonwealth, 8
Va. App. 135, 138, 379 S.E.2d 476, 478 (1989); Webster's Third
New International Dictionary 1141 (1981). Whether a fire is
incendiary or accidental is an ultimate question of fact to be
determined by the fact finder. Ramsey v. Commonwealth, 200 Va.
245, 250-51, 105 S.E.2d 155, 159 (1958).
The determination of whether a fire is accidental or
incendiary in nature often is proven solely by circumstantial
evidence. Where no direct evidence establishes how a fire
started, there is a rebuttable presumption that the fire was
caused by accident instead of by arson. Cook v. Commonwealth,
226 Va. 427, 431-32, 309 S.E.2d 325, 328 (1983); Knight v.
Commonwealth, 225 Va. 85, 89, 300 S.E.2d 600, 601-02 (1983);
Simmons v. Commonwealth, 208 Va. 778, 782, 160 S.E.2d 569, 572
(1968). However, when there is direct evidence as to how a fire
started, the presumption of accidental cause does not apply and
the fact finder must determine from the direct evidence whether
the fire was incendiary or accidental.
Here, the defendant testified that he and his cellmate were
"plucking" matches in their cell, which involves intentionally
lighting a match and tossing it in the air. As he walked out of
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the room, the defendant plucked one more match into the cell and
went to use the phone. The arson investigator testified that all
accidental causes, such as mechanical or electrical defects, were
eliminated as having caused the fire. He also testified that
throwing a match onto the mattress on the bottom bunk could have
caused the fire. The evidence was sufficient to prove that the
fire ignited on the mattress. Thus, the dispositive question is
whether the evidence is sufficient to prove beyond a reasonable
doubt that the defendant had the specific intent to burn the
mattress.
The trial judge found that the fire was not accidental. The
decision of the trial court sitting without a jury is afforded
the same weight as a jury verdict and will not be disturbed on
appeal unless plainly wrong or without evidence to support it.
King v. Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315
(1977).
Code § 18.2-77(A) states, in pertinent part,
If any person maliciously (i) burns . . . in
whole or in part, or causes to be burned or
destroyed, or (ii) aids, counsels or procures
the burning or destruction of . . . any
occupied jail or prison, he shall be guilty
of a felony . . . . Any person who
maliciously sets fire to anything, or aids,
counsels or procures the setting fire to
anything, by the burning whereof such
occupied . . . jail or prison, is burned
shall be guilty of a violation of this
subsection.
(Emphasis added). Malice, which the Commonwealth must prove in
arson cases, is no different from that required in other common
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law crimes. Bell v. Commonwealth, 11 Va. App. 530, 532, 399
S.E.2d 450, 452 (1991).
It is well-settled in Virginia that "[m]alice
inheres in the doing of a wrongful act
intentionally, or without just cause or
excuse, or as a result of ill will. It may
be directly evidenced by words, or inferred
from acts and conduct which necesarily [sic]
result in injury. Its existence is a
question of fact to be determined by [the
trier of fact]."
Id. at 532-33, 399 S.E.2d at 452 (quoting Long v. Commonwealth, 8
Va. App. 194, 198, 379 S.E.2d 473, 475-76 (1989)).
Relying upon familiar principles, we view the evidence in
the light most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. Higginbotham
v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Lewis testified that he was away from his cell for only three or
four minutes before returning to find a fire on his mattress
consisting mostly of smoke with a flame seven or eight inches
high. He also testified that the fire was not touching the upper
bunk. However, the arson investigator testified that the
physical damage to the cell was consistent with heavy fire damage
caused by direct flame impingement or contact on the top bunk,
radiant heat severe enough to cause blistering of paint on the
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walls, and heavy smoke damage. The physical evidence, including
the intensity of the fire and the damage caused, was inconsistent
with the defendant's explanation that he had accidentally set a
small fire which was extinguished when it was momentarily
discovered.
As the trier of fact, a trial judge is entitled to reject
testimony he finds implausible. Durham v. Commonwealth, 214 Va.
166, 169, 198 S.E.2d 603, 606 (1973). Here, the trial judge was
justified in finding the defendant's testimony that the fire was
accidental to be incredible and in finding that the physical
evidence proved that the defendant intentionally threw a match on
the lower bunk and left the area until the fire had caused
substantial damage. Furthermore, the facts show that, on the
night of the fire, the defendant gave a false account of events
when he denied having any involvement in setting the fire. He
only admitted any knowledge of the fire and offered an account
that it was accidental when confronted with being given a
polygraph test. He also gave a fake account as to whether his
cellmate was present when the fire ignited. At trial, he
explained that he lied "[b]ecause everybody was threatening
whoever did it, bad threatening." The trial judge did not accept
this explanation. "The fact finder need not believe the
accused's explanation and may infer that he is trying to conceal
his guilt." Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d
608, 610 (1981). The evidence supports the trial judge's finding
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that the defendant possessed the specific intent to burn the
mattress.
Accordingly, the evidence is sufficient to support the
defendant's arson conviction, and we affirm the trial court's
decision.
Affirmed.
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